Apple could see U.S. import ban following ITC review of Motorola patent win

The U.S. International Trade Commission on Monday announced that it will review an April ruling that found certain Apple products to infringe upon a Motorola Wi-Fi patent, possibly leading to an import ban on products utilizing the technology.

The ITC review is the next step in seeking a ban against the offending Apple products, which include the iPhone and iPad, and follows the initial ruling rendered by Judge Thomas Pender in April that deemed the company violated one of four Motorola Mobility patents.

As noted by All Things D, the commission's review is being driven by petitions from both Motorola and Apple concerning claim construction, validity and infringement. Apple is also looking to bring FRAND licensing practices into the case by arguing whether the patent should even be enforced.

As noted in the ITC's review statement, the commission is requesting further information from Motorola on the following FRAND-related matters:

If the record of an investigation lacks evidence sufficient to support a RAND-based
affirmative defense (e.g., equitable estoppel, implied license, waiver, etc.), under what
circumstances (if any) should a RAND obligation nonetheless preclude issuance of an
exclusion order?

Does the mere existence of a RAND obligation preclude issuance of an exclusion
order?

Should a patent owner that has refused to offer a license to a named respondent in a
Commission investigation on a RAND obligated patent be able to obtain an exclusion
order?

Should a patent owner that has refused to offer a license on a RAND obligated patent
to some entity (regardless of whether that entity is a named respondent in a
Commission investigation) be able to obtain an exclusion order?

Should a patent owner that has refused to negotiate a license on RAND terms with a
named respondent in a Commission investigation be precluded from obtaining an
exclusion order?

Should a patent owner that has refused to negotiate a license on RAND terms with
some entity (regardless of whether that entity is a named respondent in a Commission
investigation) be precluded from obtaining an exclusion order?

Should a patent owner who has offered a RAND license that the named respondent in
a Commission investigation has rejected be precluded from obtaining an exclusion
order?

In raising the FRAND issue, Apple has managed to obtain support from outside parties that have submitted letters to the ITC in favor of the company's argument. The FTC, Microsoft, Hewlett-Packard, Nokia, Verizon, the Business Software Alliance, and the Association for Competitive Technology are among those who filed public statements, a sampling of which can be found here.

At issue is Motorola's U.S. Patent No. 6,246,697 for a "Method and system for generating a complex pseudonoise sequence for processing a code division multiple access signal" was granted in 2001 and describes timing and phase angles for wireless chips to be used in Wi-Fi applications.

Illustration from Motorola's Wi-Fi technology patent. | Source: USPTO

Motorola, now owned by Google, first sued Apple in 2010 for alleged infringement on a range of wireless communications patents. The iPhone maker filed a countersuit with the ITC but the commission ultimately cleared Motorola of any wrongdoing in March.

Along with the '697 patent, the ITC will also review arguments related to the remaining three patents thrown out by Judge Pender during the initial decision, effectively putting all four in the realm of discussion. The six-member commission expects to give a final judgment on Motorola's assertions by August and both Apple and Motorola will release answers to the ITC's questions in the coming weeks.

So one judge (Posner) says that banning a Motorola device would be "catastrophic and hurtful" to users in denying and dismissing both company's lawsuits. Now the ITC might possibly ban Apple products and that would not be catastrophic and hurtful to users? Is that about it?

Good thing Google is above all this patent nonsense. Remember back when they didn't have patents, no one shuld be suing anyone over patents, especially essential patents. Now that they have patents, FIRE EVERYTHING!

Not mentioned is that the ITC review may throw one or more of three Moto patents back into play that Judge Pender deemed either not infringed by Apple or not valid for the case at hand. I don't know if any of those 3 are FRAND-pledged, but with FOSSPatents making no assertion that they are I'm going to guess they are not. I don't think he'd miss a chance to mention it.

So one judge (Posner) says that banning a Motorola device would be "catastrophic and hurtful" to users in denying and dismissing both company's lawsuits. Now the ITC might possibly ban Apple products and that would not be catastrophic and hurtful to users? Is that about it?

The catastrophic nature of the ban is not currently on the table. I'm not even sure if it is relevant here.

So one judge (Posner) says that banning a Motorola device would be "catastrophic and hurtful" to users in denying and dismissing both company's lawsuits. Now the ITC might possibly ban Apple products and that would not be catastrophic and hurtful to users? Is that about it?

Posner may be all high and mighty but his ruling demonstrates what is wrong with our system. It is the same crap that goes on when somebody kills another in front of witnesses, who is brought in for questioning and they say he didn't understand his rights completely and the the confession he gave them is not usable and they wouldn't have known any other way who saw it if he hadn't spoke up so that is fruit from the poisonous tree and they let the guy walk.

Posner may see some great law theory here which I'm sure gives him and his law buddies wood but it also ends up shove that same wood where it should never have been.

Wake up -- he can't see the forest for the trees. I know its all wood but can't you tell the pine freak the oak?

Not mentioned is that the ITC review may throw one or more of three Moto patents back into play that Judge Pender deemed either not infringed by Apple or not valid for the case at hand. I don't know if any of those 3 are FRAND-pledged, but with FOSSPatents making no assertion that they are I'm going to guess they are not. I don't think he'd miss a chance to mention it.